By Allegra A. Jones
On the heels of the U.S. Supreme Court’s historic ruling in Obergefell v. Hodges on June 26, 2015, holding that that there is a constitutional right to same-sex marriage under the 14th Amendment and striking down state-level bans on the practice, the rights of certain religious restaurant owners and other businesses, such as wedding planners, caterers and bridal salons, to refuse service to customers on the basis of sexual orientation will come to the forefront.
Restaurants and bars qualify as “public accommodations” under federal law, even if they’re a private business. That means it is illegal under the Civil Rights Act of 1964 for those businesses to discriminate or segregate on the basis of “race,” “color,” “religion,” or “national origin.” (It is also illegal to refuse service to disabled or handicapped individuals, under the Americans with Disabilities Act.) While federal law does not include “sexual orientation” within the group of people who are protected from discrimination, laws in many states do protect those groups. For example, California law prohibits the arbitrary exclusion of individuals from a restaurant based on their sexual orientation or marital status. (Unruh Civil Rights Act, Cal. Civil Code § 51 et seq.; see also Rolon v. Kulwitzky (1984) 153 Cal.App.3d 289.) Even in states where discrimination against LGBTQ people isn’t banned, such as Arizona, local laws may prohibit sexual orientation discrimination.
As these issues continue to be tested and worked out in the courts, the safest way for businesses to comply with all applicable laws is to make sure that (1) all posted notices setting forth rules for patrons’ clothing and behavior are not related to characteristics of protected groups (such as religious persons who wear headscarves or beards), and (2) your business’ treatment of patrons is consistent, fair and equal. Stay tuned as groups supporting LGBTQ equality continue to advocate for changes in these laws.
For more details about Considerations for Employers in Light of the Supreme Court’s Ruling, see Duane Morris’ client alert regarding the opinion’s impact on employment practices and employee benefit plans.